Citation Nr: 0816992	
Decision Date: 05/23/08    Archive Date: 06/04/08

DOCKET NO.  04-34 071	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in 
St. Paul, Minnesota


THE ISSUE

Entitlement to service connection for the cause of death of 
the veteran.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Amy R. Grasman, Associate Counsel




INTRODUCTION

The veteran served on active duty from February 1965 to 
January 1969.  The veteran died on April [redacted], 2000.  The 
appellant is his surviving spouse.

This appeal comes before the Board of Veterans' Appeals 
(Board) from a July 2003 RO decision.  

In February 2008, the Board requested a medical opinion from 
the Veterans Health Administration (VHA) in accordance with 
38 U.S.C.A. § 7109 (West 2002) and 38 C.F.R. § 20.901(a) 
(2007).  The requested opinion has been provided and has been 
associated with the claims folder.  The VHA opinion was also 
provided to the appellant.  The appellant was afforded 60 
days to provide additional argument or evidence.  In May 
2008, the appellant submitted a statement that she had no 
further argument or evidence to submit and elected to proceed 
with adjudication of her claim.  


FINDINGS OF FACT

1.	The appellant has been notified of the evidence necessary 
to substantiate her claim, and all relevant evidence 
necessary for an equitable disposition of this appeal has 
been obtained.

2.	The Certificate of Death shows that the immediate cause of 
the veteran's death was multiple organ dysfunction syndrome, 
and the underlying causes were severe pancreatitis and 
splenectomy.  A significant condition contributing to the 
veteran's death was chronic leukemia with Agent Orange 
Exposure.   

3.	The competent medical evidence shows that a significant 
condition contributing to the veteran's death was caused by 
exposure to chemicals or herbicides in service.  


CONCLUSION OF LAW

The cause of the veteran's death was incurred as a result of 
his active military service.  38 U.S.C.A. §§ 1110, 1310 (West 
2002); 38 C.F.R. §§ 3.5, 3.303, 3.312 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

As provided for by the Veterans Claims Assistance Act of 2000 
(VCAA), the United States Department of Veterans Affairs (VA) 
has a duty to notify and assist claimants in substantiating a 
claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 
5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).  In this case, 
the Board is granting in full the benefit sought on appeal.  
Accordingly, assuming, without deciding, that any error was 
committed with respect to either the duty to notify or the 
duty to assist, such error was harmless and will not be 
further discussed.  

Dependency and Indemnity Compensation (DIC) benefits are 
payable to the surviving spouse of a veteran if the veteran 
died from a service-connected or compensable disability.  38 
U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.5 (2007).  

Service connection may be granted for disability resulting 
from disease or injury incurred in or aggravated by service.  
38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304.  Service 
connection may be granted for disability shown after service, 
when all of the evidence, including that pertinent to 
service, shows that it was incurred in service.  38 C.F.R. § 
3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992).

To establish direct service connection for a claimed 
disorder, there must be (1) medical evidence of current 
disability; (2) medical, or in certain circumstances, lay 
evidence of in-service occurrence or aggravation of a disease 
or injury; and (3) medical evidence of a nexus between the 
claimed in-service disease or injury and the current 
disability.  See Hickson v. West, 12 Vet. App. 247, 253 
(1999); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 
1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992).  

Service connection for the cause of a veteran's death 
requires evidence that a service-connected disability was the 
principal or contributory cause of death.  38 U.S.C.A. § 
1310; 38 C.F.R. § 3.312(a).  A service-connected disability 
will be considered the principal cause of death when such 
disability, singly or jointly with some other condition, was 
the immediate or underlying cause of death or was 
etiologically related thereto.  38 C.F.R. § 3.312(b).  A 
service-connected disability will be considered a 
contributory cause of death when such disability contributed 
substantially, or combined to cause death. 38 C.F.R. § 
3.312(c).

Where the determinative issue involves a medical diagnosis or 
causation, competent medical evidence is required.  Grottveit 
v. Brown, 5 Vet. App. 91 (1993).  

In addition, certain chronic diseases, including leukemia, 
may be presumed to have been incurred during service if the 
disorder becomes manifest to a compensable degree within one 
year of separation from active duty. 38 U.S.C.A. §§ 1101, 
1112, 1113 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.307, 
3.309 (2007).  In this case, there is no indication of 
leukemia until September 1995, several years after service.  
As the veteran was not diagnosed with leukemia within one 
year after separation from service, this presumption does not 
apply.  

In this case, the veteran died in April 2000.  The appellant 
contends that the veteran was exposed to Agent Orange in 
service causing leukemia which contributed to his death.  The 
Board observes that service-connection was not in effect for 
any disability, including leukemia, at the time of the 
veteran's death.  

The veteran's service medical records are negative for any 
treatment or diagnosis of leukemia.  There is no indication 
of the disease until its diagnosis in September 1995.  The 
DD214, however, shows that the veteran was aboard the USS 
John R. Craig in service.  He received the National Defense 
Service Medal, the Republic of Vietnam Campaign Medal with 
Device (1960) and the Vietnam Service Medal.  

Certain diseases associated with exposure to herbicide agents 
may be presumed to have been incurred in service even though 
there is no evidence of the disease in service, provided the 
requirements of 38 C.F.R. § 3.307(a)(6) (2007) are met. See 
38 C.F.R. § 3.309(e) (2007). The term "herbicide agent" means 
a chemical in an herbicide used in support of the United 
States and allied military operations in the Republic of 
Vietnam during the Vietnam era.  The diseases for which 
service connection may be presumed to be due to an 
association with herbicide agents include chronic lymphocytic 
leukemia, not chronic myelomonocytic leukemia, which the 
veteran was diagnosed with.  

Nevertheless, when a veteran is found not to be entitled to a 
regulatory presumption of service connection for a given 
disability, the claim must nevertheless be reviewed to 
determine whether service connection can be established on a 
direct basis.  Combee v. Brown, 34 F.3d 1039, 1043-1044 (Fed. 
Cir. 1994).  The provisions set forth in Combee are 
applicable in cases involving Agent Orange exposure.  
McCartt v. West, 12 Vet. App. 164, 167 (1999).  

If a veteran does not have a disease associated with 
herbicide exposure, he is presumed to have been exposed to 
herbicides if he served in Vietnam between January 9, 1962, 
and May 7, 1975, unless there is affirmative evidence to 
establish that the veteran was not exposed to any such agent 
during service.  See 38 U.S.C.A. § 1116(f).  "Service in the 
Republic of Vietnam" includes service in the waters offshore 
and service in other locations if the conditions of service 
involved duty or visitation in the Republic of Vietnam.  38 
C.F.R. §§ 3.307(a)(6)(iii), 3.313(a) (2007).  VA's General 
Counsel has determined that the regulatory definition (which 
permits certain personnel not actually stationed within the 
borders of the Republic of Vietnam to be considered to have 
served in that Republic) requires that an individual actually 
have been present within the boundaries of the Republic.  
Specifically, the General Counsel has concluded that in order 
to establish qualifying "service in Vietnam" a veteran must 
demonstrate actual duty or visitation in the Republic of 
Vietnam.  See VAOPGCPREC 27- 97 (July 23, 1997), published at 
62 Fed. Reg. 63604 (1997).

The Board notes that a letter written by the Commander of the 
USS John R. Craig described an event that the crew of the 
ship went ashore in Nha Trang in Vietnam.  As the veteran's 
service was between 1965 and 1969, the Board finds that the 
veteran had actual visitation in the Republic of Vietnam 
between January 1962 and May 1975.  There is also a statement 
in support of the appellant's claim from a shipmate of the 
veteran that indicated that they were exposed to chemicals, 
including kerosene JP-5, aboard the USS John R. Craig.  There 
is no affirmative evidence of record showing the veteran was 
not exposed to Agent Orange in service.  Therefore, the Board 
finds that the veteran is presumed to have been exposed to an 
herbicide agent in Vietnam.  See 38 U.S.C.A. § 1116(f) (West 
2002); 38 C.F.R. § 3.307(a)(6)(iii).

Furthermore, there is competent medical evidence that 
exposure to herbicides in Vietnam caused chronic 
myelomonocytic leukemia that contributed to the veteran's 
death.  

There are private medical opinions of record dated in August 
2004 and September 2004 that indicate the possibility that 
the chronic myelomonocytic leukemia was related to exposure 
to benzene and Agent Orange in service.  

More over, the February 2008 VHA opinion provides a nexus 
between the chronic myelomonocytic leukemia and service.  The 
examiner noted that chronic myelomonocytic leukemia is 
considered by the World Health Organization as one of the 
myelodysplastic syndromes and there is considerable evidence 
linking them to environmental and chemical exposures.  
Furthermore, the examiner opined that the veteran's chronic 
myelomonocytic leukemia was the result of exposure to 
chemicals or herbicides while in service.  

Additionally, there is evidence that chronic myelomonocytic 
leukemia was a contributing cause to the veteran's death.  
Specifically, the Certificate of Death shows that a 
significant condition contributing to the veteran's death was 
chronic leukemia with Agent Orange exposure.  

In conclusion, there is presumed exposure to herbicides in 
service and competent medical evidence linking herbicide 
exposure in service to chronic myelomonocytic leukemia.  
Additionally, chronic myelomonocytic leukemia was a 
contributory cause of death.  The Board finds that a service-
connected disability, chronic myelomonocytic leukemia, was a 
contributory cause of the veteran's death and grants the 
appellant's claim.  


ORDER

Service connection for the cause of death of the veteran is 
granted.  



____________________________________________
John E. Ormond, Jr.
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs